Sunday, January 25, 2009

Potent scholarship about reasonableness review and sentence explanations

The University of Chicago Law Review has published this new comment, titled "Determining 'Reasonableness' without a Reason?: Federal Appellate Review Post–Rita v United States."  As detailed in these passages from the introduction, the piece provides a potent and wise account of how appellate courts should assess procedural reasonableness:

This Comment explores the circuits’ conflicting readings of the Booker and Rita rulings with respect to the adequacy of judges’ sentencing explanations and argues that a sentence is procedurally reasonable only when the appellate court can follow, recreate, and assess the district court’s basis for the sentence. Not only is this conclusion supported by Booker and Rita’s emphasis on the importance of thoroughly reasoned sentencing opinions for the evolution of the Guidelines, but also by the SRA’s focus on increased transparency and rationality in the sentencing process....

Part V discusses the centrality of explicit and thoroughly reasoned sentencing explanations to SRA’s vision of the federal judiciary’s role in the development of sentencing policy and procedures. It proposes that the First and Sixth Circuits’ reading of Rita— that a sentence is procedurally unreasonable when neither the context nor the record clearly reveals the district court’s consideration of relevant § 3553(a) factors and the reasoning for imposing the sentence — most closely comports with both the purpose and text of the SRA, and with meaningful sentencing reform more generally.

Some related posts with some recent reasonableness review scholarship:

January 25, 2009 in Booker in the Circuits, Claiborne and Rita reasonableness case, Recommended reading, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Saturday, March 29, 2008

Examining some circuits' unreasonable efforts at reasonable review

A helpful reader called my attention to a new federal sentencing note (which will appear in the William & Mary Law Review this fall) now available here via SSRN.  The note critically examines the effects of Rita and Gall in the Sixth and Tenth Circuits; here is the abstract:

Paul Sedore pleaded guilty to two counts for defrauding the Internal Revenue Service, conspiracy to defraud the IRS and identity theft. Based only on the facts that Sedore admitted in his guilty plea and his criminal history, the Federal Sentencing Guidelines would have recommended 12 to 18 months in prison.  But based on the facts that the sentencing judge found, by a preponderance of the evidence, which Sedore did not admit and the jury did not find beyond a reasonable doubt, the Guidelines advised a range of 84 to 105 months.  The court sentenced Sedore to 84 months. Had another judge sentenced Sedore to 84 months without finding those additional facts, the court of appeals would likely reverse this hypothetical sentence as unreasonable.

The Sentencing Guidelines are hardly as advisory as the Supreme Court imagines.  In United States v. Booker, the Supreme Court tried and failed to establish an appellate standard of review of sentences that both promotes uniformity and does not violate the Sixth Amendment right to a jury trial.  In Rita v. United States and Gall v. United States, the Court considered mechanisms that federal appellate courts use to enforce the Sentencing Guidelines, the presumption of reasonableness and proportionality review.  As in Booker, the Court tried and failed to rein in the courts' infringements on the jury trial right.  By closely examining the Sixth and Tenth Circuits, this Note demonstrates how the combination of the presumption of reasonableness, the double standard of procedural reasonableness, and proportionality review still violate the Sixth Amendment.  Short of Congressional overhaul, this Note argues that the Supreme Court should solve its inherently flawed Booker remedy by prohibiting substantive reasonableness review and requiring uniform sentencing explanations from district courts.

March 29, 2008 in Booker in the Circuits, Claiborne and Rita reasonableness case, Gall reasonableness case, Rita reactions | Permalink | Comments (0) | TrackBack

Wednesday, January 30, 2008

Two notable Rita remands from the Eighth Circuit

The Eighth Circuit today has two notable (and notably similar) remands based on Rita.  My friends cut and paste help me provide these unofficial summaries from this official circuit webpage:

US v. William Greene, No: 07-1479 [PUBLISHED] [Bye, Author, with Bowman and Smith, Circuit Judges](available here): In light of Rita, the district court's application of a presumption of reasonableness to the applicable guidelines range was a significant procedural error, and the case is remanded for resentencing.
 
US v. Nathan Huff, No: 07-1500 [PUBLISHED] [Bye, Author, with Bowman and Smith, Circuit Judges](available here): In light of Rita, the district court's application of a presumption of reasonableness to the applicable guidelines range was a significant procedural error, and the case is remanded for resentencing.

January 30, 2008 in Claiborne and Rita reasonableness case | Permalink | Comments (0) | TrackBack

Monday, January 14, 2008

Sixth Circuit continues taking reasonableness review seriously

For many reasons, including the fact that the case has been bouncing around the federal courts for more than 5 years, the Sixth Circuit might have been inclined to summarily approve the within-guideline sentence at issue in US v. Peters, No. 05-6101 (6th Cir. Jan. 14, 2008) (available here).  Instead, in a brief published opinion, the Peters panel remands for another resentencing because "the District Court did not address the defendant's 'time-served' argument or the mitigating factors indicating that a 'time-served' sentence would satisfy the so-called 'parsimony provision' of 18 U.S.C. § 3553(a)."  Peters thus serves as another reminder that district courts, at least in the Sixth Circuit, need to make sure they always show their sentencing work after Booker.

January 14, 2008 in Booker in the Circuits, Claiborne and Rita reasonableness case | Permalink | Comments (4) | TrackBack

Tuesday, December 18, 2007

AFDA webcast on lastest federal sentencing developments

As detailed on this page, Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), has organized another of his great audio webcast for this Wednesday (December 19) at 12noon ET to allow me to discuss Kimbrough, Gall, the new crack guidelines and related federal sentencing happenings  and its possible aftermath. 

Unlike other groups seeking big bucks for webcasts, the AFDA usually only charges a nominal fee and the Greg has made this webcast free for everyone.  The webcast will be an informal interview conducted over live streaming audio, with accompanying text posted to a viewing screen and links to PDF files containing materials relevant to the topics discussed. To attend this webcast, simply:

Though I plan primarily to recap and expand upon some commentary already appearing here, I'd be grateful if readers might use the comments to note any issues that seem particular important for me to cover during this webcast.

December 18, 2007 in Booker and Fanfan Commentary, Booker in the Circuits, Claiborne and Rita reasonableness case, Federal Sentencing Guidelines, Gall reasonableness case, Kimbrough reasonableness case | Permalink | Comments (3) | TrackBack

Friday, November 16, 2007

A significant (unpublished?!?!?) Second Circuit Rita ruling

The Second Circuit today has a lot of effective sentencing analysis in its unpublished(!?!) ruling in US v. Baker, No. 05-4693 (2d Cir. Nov. 16, 2007) (available here).  The summary order reverses for lack of adequate explanation a within-guideline sentence by stressing the importance of giving sentencing reasons after Booker and Rita.  Here are some snippets from a strong opinion that, in my view, should be published:

Sentencing judges are not relieved of their obligation to provide their rationale for sentencing because they impose a sentence within the Guidelines....  The increased discretion granted to judges by the Booker decision only amplifies the importance of articulating the reasons for a particular sentence and requires sentencing judges’ compliance with § 3553(c)’s requirements.

Here, although Baker argued that he was entitled to a sentence below the Guidelines range and raised numerous arguments to that effect, the district court made clear from the outset of the sentencing hearing that it would only consider a sentence within the Guidelines.  The district court did not articulate why a Guidelines sentence was appropriate....

Baker specifically argued that there are no findings by Congress or the Sentencing Commission to support the assumption that people who possess or transport child pornography are likely to engage in the sexual victimization of children, and that, when crafting the heightened Guidelines range for these offenses, the Sentencing Commission failed to consider this fact. The district court’s reticence to discuss how Baker’s conduct fits within the range of child pornography offenses targeted by the Guidelines is especially problematic in light of its specific finding that there was no evidence that Baker engaged in any sort of sexual abuse.

Given the circumstances presented by Baker’s case, as well as the non-frivolous arguments made on his behalf for a below Guidelines sentence, at the very least, the district court needed to articulate why it did not consider or choose a non-Guidelines sentence.  Even though the district court stated that it had considered the § 3553(a) factors, that it was not bound by the Guidelines and that it found a sentence within the Guidelines to be “necessary, reasonable, and appropriate to address the nature and seriousness of the offense, the criminal history category, and the characteristics of the [d]efendant to serve the overall objectives of punishment, general deterrence, incapacitation, and rehabilitation,” there is nothing in the record which showed that the district court actually complied with these statements.

This was not a “typical case” where “the context and the record make clear” the reasoning underlying the judge’s conclusion.  Rita, 127 S. Ct. at 2468-69.  The district court’s lack of analysis of the positions presented by defense counsel and relevant under § 3553(a) precludes proper appellate review of the reasonableness of Baker’s sentence.

November 16, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (5) | TrackBack

Tuesday, October 23, 2007

Rooting for the Sixth Circuit to take acquitted conduct en banc in White

As noted in this prior post, a Sixth Circuit panel earlier this month indicated that all three members would strongly recommend" en banc review of the "important question" of "whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005)."  This quoted language comes from the panel's per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here).  I believe an en banc petition was filed last week in White, so now I am eagerly awaiting word on whether the White panel has convinced the majority of the Sixth Circuit to take up the acquitted conduct issue. 

As regular readers know (and as posts linked below highlight), I find acquitted conduct enhancements especially troublesome in the wake of Blakely and Booker.  Moreover, Justice Scalia's concurring opinion in Rita indicates that some within-guideline sentences depending too much on judicially found facts would trigger "as-applied" Sixth Amendment concerns even within an advisory guideline scheme.  Justice Scalia's discussion of "as-applied Sixth Amendment challenges" in Rita provides further support for a constitutional attack on use of acquitted conduct as a sentencing enhancement.

Further, a number of district court opinions suggest that sentencing courts may be taking a variety of post-Booker approaches to the consideration of acquitted conduct sentencing enhancements.  For example, a terrific district court opinion from the Eastern District of Virginia in Ibagna (discussed here) makes a strong case for why acquitted conduct should no longer be used at sentencing now that Booker mandates that the provisions of 18 U.S.C. § 3553(a) guide sentencing decision-making.  And, within the Sixth Circuit, another terrific district court opinion from the Southern District of Ohio in Coleman (discussed here) reaches a distinct conclusion about how to deal with acquitted conduct enhancements after Booker.

In short, in addition to a core constitutional issue, acquitted conduct enhancements after Booker raise interesting and important statutory interpretation and reasonableness review issues as well.  Because the Sixth Circuit has been among the most thoughtful and nuanced appellate courts trying to sort through Booker fall-out, I am very hopeful it will be the first circuit to assess these issues directly through an en banc proceeding.

Some related posts:

October 23, 2007 in Booker and Fanfan Commentary, Booker in the Circuits, Claiborne and Rita reasonableness case, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Wednesday, September 26, 2007

Read all about Rita (and get ready for Gall and Kimbrough)

I am pleased to see that the Denver University Law Review now has all the papers in its special symposium on Rita now available at this link.  A list of the titles and contributors shows why anyone interested in federal sentencing after Booker has to cruise over and check out all the paper in the symposium:

September 26, 2007 in Claiborne and Rita reasonableness case, Gall reasonableness case, Kimbrough reasonableness case | Permalink | Comments (0) | TrackBack

A few of my scholarly thoughts on Rita

I was honored to be asked by students at the Denver University Law Review to contribute my thoughts about the Supreme Court's work in Rita v. United States, and very pleased that the students at DULR were eager to get a special issue on Rita to press before the Court heard Gall and Kimbrough.  My contribution, entitled "Rita, Reasoned Sentencing, and Resistance to Change," is now available at this link.

I will do a number of future posts about my piece and the other terrific pieces that DULR has assembled in short order, but for now let me just provide this snippet from my introduction:

As explained in Part I below, the Booker remedy transformed a constitutional debate into a multi-dimensional cacophony of sentencing issues that Rita could only begin to address.  Moreover, as detailed in Part II, though Rita does answer a few key post-Booker questions, the opinions in Rita have passages that present new puzzles for anyone trying to sort through the post-Booker world of federal sentencing.  Finally, as discussed in Part III, Rita and lower courts’ early reactions to the decision ultimately reveal, yet again, that dramatic legal changes face resistance from sentencing actors who become acclimated to the status quo. Indeed, the history of modern federal sentencing reforms demonstrates that changes in legal doctrines become revolutionary only when they ultimately transform the legal cultures in which these doctrines operate.  This lesson should be heeded not only by the Supreme Court as it considers another set of sentencing cases, but also by all would-be legal reformers in the field of sentencing and beyond.

September 26, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (7) | TrackBack

Wednesday, August 01, 2007

Top-side briefs in Gall and Kimbrough

All the briefs on the petitioners/defendants' side of the two pending SCOTUS reasonableness cases, Gall v. United States and Kimbrough v. United States, were filed last week. I believe all of these briefs can be accessed at this page created on the New York Council of Defense Lawyers ("NYCDL") website.  (In addition, Paul Rashkind has assembled a lot of the briefs here, and I believe they will also appeal on this defender website eventually.)

I have only so far had a chance to read some of the briefs (in part because I was helping with this NYCDL brief in Gall).  There appears to be a lot of interesting and important post-Rita work being done in these briefs, and readers are encouraged to spotlight particular efforts and passages they consider especially notable.  I hope to find time after the bottom-side briefs are filed to comment on what the Justices might think about what they are being told.

UPDATE:  I have been told that briefs on the defender website are available here for Gall and here for Kimbrough.

August 1, 2007 in Blakely in the Supreme Court, Claiborne and Rita reasonableness case, Gall reasonableness case, Kimbrough reasonableness case, Rita reactions | Permalink | Comments (2) | TrackBack

Tuesday, July 10, 2007

Two Rita sightings (citings?) in the Eighth Circuit

I am still waiting for some circuit to issue a major Rita ruling (and perhaps I may have to wait forever).  While waiting, the Eighth Circuit today at least cites Rita in two notable sentencing opinions:

In US v. Jones, No. 06-3489 (8th Cir. July 10, 2007) (available here), the panel affirms a within-guideline crack sentence and cites Rita to support the sufficiency of the district court's limited sentencing comments.

In US v. Icaza, No. 06-2882 (8th Cir. July 10, 2007) (avaiable here), the panel reverses three within-guideline sentences because of a miscalculation of the number of victims involved when the defendants "shoplifted from approximately 407 Walgreens stores."  Interestingly, as interpretted in Icaza, the federal sentencing guidelines treat shoplifting hundreds of times from different outlets of one store as less serious than shoplifting once from a dozen different stores. 

July 10, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (1) | TrackBack

Tuesday, July 03, 2007

Senator Biden picking up Scooter Libby and Victor Rita parallels

I am pleased to see from this post on Senator Joe Biden's blog that the senior senator from Delaware — where I am right now supposedly on vacation — is talking about the different treatment that the Bush Administration has shown toward Scooter Libby and Victor Rita.  Here is the text of Senator Biden's recent official statement:

“Tony Snow said that President Bush decided to commute Scooter Libby’s two and a half year-prison sentence for perjury and obstruction of justice, because it was ‘excessive.’

“Yet last year the Bush Administration filed a “friend-of-the-court brief” with the Supreme Court, in an attempt to uphold a lower court’s ruling that a 33-month prison sentence for Victor Rita, who was convicted of the same exact charges, perjury and obstruction of justice, was ‘reasonable.’

“The questions we should all be asking ourselves today are: Why is the President flip-flopping on these criminal justice decisions? Why is Scooter Libby getting special treatment?”

As is not uncommon, the politician has the law a little wrong.  The Bush Administration was filing as a party (the respondants) in the Rita case before the Supreme Court.  Also, I think SG's Rita brief was filed in this year.  But, legal technicalities aside, Senator Biden is right to wonder why President Bush viewed Scooter Libby's (within-guidelines) prison sentence to be excessive while his Justice Department has argued so forcefully that Victor Rita's (within-guidelines and longer) sentence is reasonable.

As detailed in many posts below, I have been noting the Libby-Rita parallels for quite some time:

July 3, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (2) | TrackBack

Thursday, June 21, 2007

The opinion(s) in Rita

Here is the vote breakdown in the Rita opinion (which How Appealing makes available via westlaw at this link):

A very quick read suggests the main opinion is very supportive of the work of district courts, circuit courts and the Sentencing Commission, all of which adds up to a loss for Mr. Rita on appeal (and generally bad news for Lewis Libby and other defendants seeking to challenge within-guideline sentences).

UPDATE:  The full 59-page effort is now also at this link.  My printer is working overtime, and I'll likely need a few hours to digest what's here.  Separate posts on each of the four opinions will follow.

June 21, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (19) | TrackBack

Rita is here and...

Lyle Denniston is reporting here at SCOTUSblog that Rita is out and upholds a presumption of reasonableness for within-guideline sentences.  However, the vote count suggests the opinion may be very nuanced.  Here is the first report:

The Supreme Court ruled on Thursday that a federal criminal sentence within the Guidelines may be presumed to be reasonable when the case is on appeal. However, it said that such a presumption is not binding.  Although the Court was divided in some respects, the vote on the result was 8-1 with only Justice David H. Souter dissenting in Rita v. U.S. (06-5754).

A lot more to follow, of course.

MORE:  Here is Lyle's new paragraph describing the main opinion:

In key passages in Justice Stephen G. Breyer's main opinion, the Court said: "A non-binding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence.  Still less does it forbid the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone.  As far as the law is concerned, the judge could disregard the Guidelines and apply the same senence (higher than the statutory minimum or the bottom of the unenhanced Guidelines range) in the absence of the special facts (say, gun brandishing) which, in the view of the sentencing Commission, would warrant a higher sentence within the statutorily permissible range.  Thus, our Sixth Amendment cases do not forbid appellate court use of the presumption."

I am now certain that one of the levels of hell involves trying to figure out what an important SCOTUS ruling says and means before being able to access the opinion itself.

June 21, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (5) | TrackBack

Anticipating Rita reactions

Whenever the Supreme Court hands down a ruling in Rita — and, gosh, I hope it's soon — I will be watching closely reactions from other federal sentencing participants.  Of course, the nature and swiftness of reactions will depend greatly on whether the Court in Rita ratifies the reasonableness status quo for within-guidelines or instead rejiggers the post-Booker landscape.  But, even without seeing the opinion, we can already anticipate how key actors will likely respond:

Of course, all this does not mean the outcome in Rita is inconsequential.  Rather, my main point is to highlight some structural realities that will shape Rita reactions no matter what the ruling.  (Also, adding to these status quo dynamics is the fact that SCOTUS will not drop other reasonableness review shoes until probably 2008 when it eventually rules in Gall and Kimbrough.)

Some recent related posts:

June 21, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (2) | TrackBack

Tuesday, June 19, 2007

A coming reasonableness clusterf#@k? Ruminations while waiting for Rita

SCOTUS guru Tom Goldstein is now predicting here that Justice Alito is writing the opinion for the Court in Rita, after having previously predicted that Justice Stevens and then that Justice Breyer was in charge of Rita.  I think all of Tom's predictions may be right because, as I wait impatiently for a ruling on reasonableness from the Court, I am now thinking we could get many opinions in Rita.  Let me detail my latest (wholly speculative) ruminations on Rita:

1.  The Sixth Amendment's impact: Given the Court's recent ruling in Cunningham and the affinity shown by Justices Stevens, Scalia and Thomas for the Sixth Amendment jury trial right, there likely will be at least one Rita opinion stressing the impact and import of the Sixth Amendment in post-Booker sentencing.

2.  The SRA's impact: Given the remedial opinion in Booker and the Court's unanimous work a decade ago in Koon, there likely will be at least one Rita opinion stressing the impact and import of the statutory provisions of the Sentencing Reform Act (and especially 3553(a)) in post-Booker sentencing.

3.  The USSC's impact: Given the remedial opinion in Booker and also the the affinity shown by Justices Breyer and Alito for the US Sentencing Commission, there likely will be at least one Rita opinion stressing the impact and import of the guidelines in post-Booker sentencing.

Perhaps one impressively comprehensive opinion for the Court can cover all this ground.  But the disaffinity of Justices Kennedy and Breyer for the Sixth Amendment jury trial right suggests they won't join an opinion praising Blakely's view of jury trial rights.  And the apparent disaffinity of Justice Scalia for the USSC (and for Justice Breyer?) suggests he won't join an opinion praising the guidelines.

Throw into this mix the two new Justices — whose contrasting votes in Cunningham suggest they look at these issues and the Court's recent sentencing jurisprudence quite differently — and we could have a real mess on our hands with perhaps multiple plurality opinions in Rita

Indeed, the Court's cert grants in two new sentencing cases set for argument next term perhaps makes the most sense if the Justices have been struggling with a messy set of opinions in Rita.   Perhaps the Justices realize that their work in Rita will raise as many questions as it answers, and thus they want and will need another big bite at the post-Booker sentencing apple to provide guidance to lower courts still trying to sort through the post-Booker world.

Some recent related posts:

June 19, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (1) | TrackBack

Friday, June 15, 2007

Could the Libby case be impacting the Justices' views and work on Rita?

As I have highlighted in posts here and here, decorated veteran Victor Rita received a within-guideline 33-month sentence for seemingly less serious instances of perjury and obstruction than the crimes that have led to Lewis Libby's 30-month within-guideline sentence.  Meanwhile, as public debate over Libby's sentence has raged for nearly a month, the Supreme Court has been finalizing its ruling concerning whether Victor Rita's sentence is constitutional and reasonable under Booker and 18 U.S.C. § 3553(a).

Notably, the Libby outcome has already led a number of persons known for tough-on-crime views and rhetoric to decry the length of Libby's 30-month within-guideline sentence: former federal prosecutors Rudy Giuliani and William Otis have both made statements suggesting that Libby's sentence is unreasonably long.  Though not stated in these terms, these high-profile criticisms of the length of Libby's sentence certainly spotlight the suspect nature of post-Booker doctrines that essentially apply a conclusive presumption that any and every within-guideline sentence is reasonable. 

Though Supreme Court rulings are probably rarely impacted by inside-the-Beltway Sturm und Drang, it would be quite difficult for the Justices not to see the shadow of Lewis Libby hanging over their work in Rita.  Though I doubt Libby's name will appear in the eventual Rita ruling, I think it is quite possible (and arguably quite appropriate) that the Libby case is impacting the Justices views and work on Rita.

Some recent related posts:

June 15, 2007 in Claiborne and Rita reasonableness case, Libby sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Thursday, June 14, 2007

SCOTUS still keeping us sentencing fans waiting

According to this post at SCOTUSblog, the three opinions issued by the Supreme Court today include nothing exciting for criminal justice fanatics (though there was a 5-4 split ruling against a defendant on a technical appellate jurisdiction issue).  So, we will all have to wait until at least next week for a Rita ruling.

I must admit that I'm not too disappointed because now I can focus on other important matters over the next few days.

June 14, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (6) | TrackBack

Wednesday, June 13, 2007

Are we just a day away from a ruling in Rita?

Word on the street is that the Supreme Court could issue as many as four opinions tomorrow morning.  And, as regular readers may recall from this post, Deputy SG Michael Dreeben last month predicted that Claiborne and Rita would be decided in the second week of June. 

Of course, Dreeben's prediction predated the unexpected demise of Claiborne and the new federal sentencing cert grants.  Nevertheless, it is surely only a matter of weeks before we get a decision in Rita, and perhaps in fact now it is only a matter of hours.

Any (last-minute?) guesses about what Rita will say and how many opinions there will be? 

June 13, 2007 in Claiborne and Rita reasonableness case | Permalink | Comments (6) | TrackBack

Monday, June 11, 2007

SCOTUS scratches my sentencing itch, but also has me scratching my head

I am, of course, excited that the Supreme Court has now taken up two new federal sentencing cases, Kimbrough from the Fourth Circuit and Gall from the Eighth Circuit, to deal with post-Booker sentencing issues (basics here).  Based on a quick review (and helpful reader comments) and more from SCOTUSblog, it seems that that Gall is a partial replacement for the Claiborne case because it addresses a below-guideline sentence reversed by the Eighth Circuit.  But unlike Claiborne, Gall is not a crack case, so Kimbrough was apparently taken to allow the Justices to address directly whether a district court may deviate from the guidelines based on a disaffinity for the harsh crack guidelines.

Perhaps the key and most significant fact in both Gall and Kimbrough is that the district court in both cases imposed a below-guideline sentence that a circuit court thereafter reversed as unreasonable.  In sharp contrast, the Rita case still pending before SCOTUS (and still expected to be decided this term?) deals with a within-guideline sentence imposed by the district court and affirmed as presumptively reasonable by the Fourth Circuit.  Also significant is that the Supreme Court apparently plans to hear Gall and Kimbrough under a normal schedule next Fall, but likely still will issue a ruling in Rita this month.

So, adding up these pieces, what does this likely mean for the future of federal sentencing law and post-Booker jurisprudence?  I am still scratching my head, but let me venture a few ruminations:

1.  Based on the 1996 Koon decision, I have long thought that even anti-Blakely Justices favor significant district court discretion over circuit court lawmaking in the sentence arena.  Consequently, I have always expect that the post-Booker cases would champion district court discretion (and perhaps fault excessive circuit court intervention) in sentencing determinations.

2.  The "problem" with Rita is that championing district court discretion by affirming the sentence imposed by the district court also serves, at least indirectly, to praise the guidelines.  (And, conversely, reversing in Rita might suggest reasonableness review should be aggressive.)

3.  Without the Claiborne companion, the Justices may be worried that Rita alone wont allow the development of the complete message they wish to send to lower courts about post-Booker doctrines and practices.

4.  But all the timing (and the many options) have me really puzzled.  Whatever the court does with Rita, the holding and the dicta will reverberate through the federal sentencing world ASAP.  And yet, as the Rita pebble (or boulder) ripples through the federal sentencing pond, everyone will know that the Justices have just picked up two more rocks to throw into the pond.  And, under usual timelines, we shouldn't expect rulings in Gall and Kimbrough until perhaps January 2008 or later.

5.  Sadly, I am now worried we might know who's the next President before we know what Booker really means for federal sentencing.  Oy vey.... though I guess it's good for my business.

June 11, 2007 in Booker in the Circuits, Claiborne and Rita reasonableness case, Federal Sentencing Guidelines, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (7) | TrackBack